of railways to said lands, all of which, if successfully carried out, would require the expenditure of a large sum of money. That, to secure such a body of land as would render such expenditure desirable, it was necessary that plaintiff acquire many small tracts of land lying practically contiguous to each other. That, in his examination of a tract of 275 acres owned by J. C. McCoy and W. A. Brown, he ascertained that the defendant W. J. McCoy and others jointly interested with him owned three tracts of land adjacent to said 275-acre tract, and containing respectively 429, 336, and 943 acres, which tracts are known as the James McCoy lands. That about January 1, 1904, he entered into correspondence with defendant W. J. McCoy, as part owner of said lands and as agent for all of the other defendants, with a view to secure an option to purchase the said lands, and, as it required considerable time for said W. J. McCoy to communicate with his co-owners, “your orator, being desirous of obtaining such option and closing up the same without loss of time, your orator instructed the president and cashier of the First National Bank of Ronceverte, West Virginia, that should a sixty-days option to the plaintiff for said land be mailed to the bank by said W. J. McCoy, fixing a price thereon which was at all reasonable, that said bank should, out of the funds of your orator deposited therein, which largely exceeded said sum, pay to the said W. J. McCoy or his order $50 for said option, and your orator wrote to said McCoy informing him of this arrangement, and that the money was deposited in said bank for said purpose, and requested him to send said option to said bank." That, no such option having been received at said bank, the plaintiff, about March 2, 1904, caused J. C. McCoy, who is a cousin of said W. J. McCoy, to send for plaintiff a telegram to W. J. McCoy to the effect that the plaintiff was then in Ronceverte, and that unless an option was secured promptly the chance of a sale to him would be lost. That on March 3, 1904, said W. J. McCoy telegraphed said J. C. McCoy as follows: "For fifty dollars will give sixty day option at twenty-five thousand dollars." That on March 3, 1904 said W. J. McCoy also forwarded to said plaintiff two letters which read as follows: "Dear Sir: I assume J. C. McCoy has shown you my telegram. I would explain delay by stating that not until after the receipt of his telegram did I succeed in getting consent of the last party interested, to name the figure mentioned,-$25000.00. "If the option on that basis is desired please inform me to that effect. W. J. McCoy." "Respectfully yours, "Dear Sir: In my letter to you mailed this P. M., I should have added that the option referred to would mean one-third cash, balance, if desired, in one and two years, in equal installments, with 6% interest, payable annually, on the deferred payments. "Resp'ly yours, W. J. McCoy." That upon seeing the telegram to said J. C. McCoy, plaintiff at once, on the 3d day of March, 1904, sent the following telegram to said W. J. McCoy: "Your telegram just handed me, forward sixty day option to-day First National Bank, Ronceverte. [Signed] C. B. Couch." The bill further avers that on the same day the plaintiff wrote said W. J. McCoy accepting the option at said price, "and informing said McCoy that said sum was deposited at said bank and would be forwarded by it on receipt of option," etc. The letter referred to is exhibited with the bill, but does not contain any part of the language above quoted from the bill, but reads as follows: "Your telegram to Mr. J. C. McCoy was handed me this morning and I was surprised at the price you placed upon your property inasmuch as your cousin J. C. McCoy whose land adjoins this had priced me his property at $10 per acre. However as I have but a few days in which to make my decision I decided to wire you to forward option at the price named and as soon as said paper arrives I will make investigation of your property and write you immediately on my return to Ronceverte. "If you have not already forwarded option please do so at once as I have to give answer to other parties very shortly." That on March 9, 1904, plaintiff received a telegram from said W. J. Mc. Coy, stating that he could not send option at price named, to which he at once replied by wire as follows: "Telegram to Charleston received. Have relied on your statements. hold you thereto. Am ready to take lands on terms mentioned." Must On the 14th of March, 1904, Mr. Couch wrote the following letter to Mr. McCoy, which closes the correspondence exhibited with the bill: "Dear Sir: Your telegram to me calling off trade between us was certainly a great surprise to me. I went into the matter in good faith and asked you for price on your and your co-owners' land in Greenbrier County, this State. Immediately upon receipt of your telegram to Mr. J. C. McCoy, which was sent at my request, I accepted the offer named in your telegram and went to considerable expense in sending engineers to survey and examine the property before I received your telegram declining to carry out your agreement. On March 8th J wired you that I was prepared to take the land upon the terms agreed upon, and I now write to confirm that telegram. I am prepared to take and pay you for the land upon the terms agreed upon, namely, onethird cash and the balance in one and two years, and in justice to myself I shall have to insist upon your complying with your agreement. As a matter of protection to myself, I have instituted suit for the specific performance of your contract, and have filed a Lis Pendens on the records in Greenbrier County. "I believe if you will give this matter your consideration that you will recognize both your moral and legal obligation to convey to me this land in compliance with your agreement, and you will thus save the expense of a litigation which I shall have to prosecute to enforce my rights in the matter. "Trusting that you will take this view of the matter, I remain," etc. Before passing to a discussion of the case as the same is before me, I call attention to the fact that the above-quoted letter states that Mr. Couch wired acceptance of the land on March 8th. This is evidently an error, as his telegram was not sent until March 9th, and after the receipt of a telegram from McCoy withdrawing offer of option. Mollohan, McClintic & Mathews and Geo. E. Price, for plaintiff. Brown, Jackson & Knight and W. J. McCoy, in pro. per., for defendants. KELLER, District Judge (after making foregoing statement). This case is now before me upon demurrer to the bill, and, as a matter of course, all the facts well pleaded in the bill are, for the purposes of the demurrer, to be taken as literally true; and I think these facts, relieved of certain minor contradictions appearing in the bill itself, are substantially set forth in the foregoing statement. It is well at the outset to distinguish between an offer of an option and an offer of sale. It is indisputable that had a 60-day option, upon the terms set forth in the telegram exhibited with the bill, been offered by Mr. McCoy without consideration, it might have been withdrawn by him at any time, provided such withdrawal had been communicated to the plaintiff prior to his acceptance of the same; and by this I mean the acceptance of the proffer to sell, for until such acceptance there is no contract, as the proposed vendee is not in any way bound, and unless both are bound, so that an action could be maintained against either for a breach, neither is bound. Mr. Bishop, in his work on Contracts, § 325, says: "Since an offer is not a contract, the party making it may withdraw it at any time before acceptance. Even though it is in writing, and by its terms is to stand open for a specified period, the result is the same. With no money consideration, and no corresponding promise from the person to whom it is made, the promise not to withdraw it has no binding force. If a consideration for the undertaking to leave the offer open is given and accepted, this of itself constitutes a contract, and the offer cannot be withdrawn." It is then manifest that an offer of an option, until accepted according to its terms, is no more binding than an offer of sale without consideration, and may be withdrawn unless prior to such withdrawal it be so accepted. There are then two elements in every option contract: First, the offer to sell, which does not become a contract unless and until accepted according to its terms; and, second, the completed contract to leave the offer open for a specified time, and this, as will be shown, in order to become a completed contract, must be for some consideration deemed valuable in law. The very existence of option contracts arose because of the liability of the withdrawal of offers to sell before they were formally accepted, and it thus becomes manifest that an offer of an option, until it is turned into a completed option contract by acceptance in accordance with its terms, and the payment or tender of the consideration therefor, is entirely subject to the same rules in regard to withdrawal as the plain offer to sell. It therefore becomes important in the case at bar to determine whether there was a valid and binding (that is, a completed) contract of option existing between the plaintiff and the defendant W. J. McCoy. In the argument before me, considerable time was spent in discussing the question whether Mr. Couch, in his telegram of March 9th, and his letter of March 14th, had duly and properly accepted the offer to sell, in accordance with the terms of said offer. In the view I take of this case, I do not consider that point as material, and prefer now to examine the question as to whether there was in fact a valid option contract subsisting between the parties to hold the offer open for 60 days, because, if there was not, it is quite evident that the offer to sell was withdrawn before its acceptance by Mr. Couch, and the withdrawal was promptly communicated to him. In England it has been held that there is neither principle nor authority for the proposition that there must be an express and actual withdrawal of the offer, but that the two minds must be at one at the same moment of time; that is, that there must be an offer continuing up to the moment of acceptance, and that if in fact the offer did not continue up to such moment the acceptance cannot make a binding contract. Dickenson v. Dodds, L. R. 2 Ch. Div. 463. In this country, on the contrary, it has been held that, to constitute a valid retraction, it must be communicated to the other party before he has accepted. Weaver v. Burr, 31 W. Va. 736, 8 S. E. 743, 3 L. R. A. 94. A failure to distinguish and recognize the independent character of the contract to leave the offer open, and the attempt to treat the offer to sell and the time option contract as one transaction, has resulted in much confusion of thought. The relief usually sought is a specific enforcement of the offer to buy or sell, and, so far as the reported cases decreeing specific performance show, the offers have universally been accepted before their formal withdrawal, and therefore have become completed contracts which could be enforced. The language of the courts must therefore be read in the light of that fact, and be regarded as surplusage in so far as it tends to hold that, if the offer was formally withdrawn before acceptance, the contract would still be specifically enforceable. In an editorial note to the case of Litz v. Goosling (Ky.) 19 S. W. 527, 21 L. R. A. 127, it is suggested that even in the case where a completed time-option contract existed, and the offer therein contained was withdrawn before acceptance, there would ordinarily be no equitable ground for specific performance, although there would be a breach of the completed option contract. The author says: "All attempts of the vendor to withdraw after being notified of acceptance are merely breaches of an existing contract which may be specifically enforced. But if before receiving such notice the vendor notifies the vendee of his withdrawal of the offer, it is difficult to see how there can be a specific performance of the contract, which has never been completed. Not withstanding the existence of a valid contract not to withdraw, if there is a withdrawal, the court, before enforcing the contract to sell, would have to either make a contract to enforce, or compel the vendor to make it. This might be done if there were distinct grounds for equitable jurisdiction, and no adequate remedy at law, by reason of the vendor's insolvency or some other cause. Otherwise it is hardly within equity jurisdiction. But the language of the opinions is broad enough to suggest the enforcement of a contract which has never been made." I cannot go so far as the author of this note, because, in the case of a valid option contract, complete and sufficient in its terms to warrant specific enforcement if accepted before its withdrawal, and for which a valid consideration has been paid by the vendee, the very essence of the agreement is violated, and a time option becomes a farce, if we say that the vendee's only remedy for such a breach as a withdrawal by the vendor before the expiration of the time limited is a suit for damages for the breach. The contract in such a case is made, as to all its essential terms, in the unilateral option contract, which, it is true, is only binding upon the one party until accepted by the other, but which acceptance, if made within the time and according to the terms limited in the option contract, changes what was before a unilateral contract into a mutual one; and for this right of election, it is to be remembered, the party possessing it has paid what was deemed by the other a sufficient consideration for the right. It is evident that in large transactions, involving many tracts of land, failure to secure one upon which an option has been obtained may be, and often is, fatal to the whole enterprise, and damages for the breach of the option contract would be but a poor and feeble remedy, and one not at all adequate in the premises. Watts v. Kellar, 56 Fed. 1, 5 C. C. A. 394; Hall v. Center, 40 Cal. 65; and many others. But while I believe this to be the law as well established by well-considered decisions of many courts, it is nevertheless true that, before an option contract can be enforced by the person holding it, it must itself be complete and certain as to its terms, so that the court can see what contract the parties made. Brown v. Brown, 33 N. J. Eq. 650; Nichols v. Williams, 22 N. J. Eq. 63; Hennessey v. Woolworth, 128 U. S. 438, 9 Sup. Ct. 109, 32 L. Ed. 500; Dalzell v. Dueber Mfg. Co., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749; Colson v. Thompson, 2 Wheat. 336, 4 L. Ed. 253; Diamond State Iron Co. v. Todd (Del.) 14 Atl 27; and numerous other cases to the same effect. And such option contract must not only be certain and complete, but must be accepted in accordance with its terms. Any acceptance not in accord ance with its terms is equivalent to a rejection. Weaver v. Buri 31 W. Va. 736, 8 S. E. 743, 3 L. R. A. 94; Wilkin Mfg. Co. v. Lumber Co. (Mich.) 53 N. W. 1045; Potts v. Whitehead, 23 N. J. Eq. 512. In the case last cited the following language was used by the court: "An acceptance, to be good, must, of course, be such as to conclude an agree ment or contract between the parties; and, to do this, it must in every respect meet and correspond with the offer, neither falling within nor going beyond the terms proposed, but exactly meeting them at all points, and closing with them just as they stand." Tested in the light of these authorities, let us see whether in fact there was ever a valid option contract existing between these parties. Counsel, in the argument before me, have spent a good deal of time in discussing the question whether the telegram of March 9th, and the letter of March 14th, from Mr. Couch, contained a proper acceptance of the terms of the option offered by Mr. McCoy. In my view of the case, that question is entirely unnecessary to be considered. If I was forced to consider it, I should be inclined to hold that it was a sufficient notification to Mr. McCoy that Mr. Couch elected to take the land upon the terms proposed by Mr. McCoy ; and, taking the view I do as to the enforceability of a valid option contract, accepted before the time limited for its expiration, I should be strongly inclined to hold that equity could take jurisdiction to enforce the contract. But the question here is not, as I view it, whether there was a sufficient acceptance by Mr. Couch of a valid option to purchase these lands, but whether there ever was in existence such a valid option contract. Earlier in this opinion I called attention to the distinction between the option contract and the subsequent contract of sale. If there never was a valid, completed option contract between the parties, there never could be a valid agreement of sale founded upon it, for manifestly the only right Mr. Couch would have for time for election must grow out of such a valid contract for such time. Let us see what the offer of Mr. McCoy was, and whether it ever was accepted, so as to become a valid option contract for 60 days' time. Mr. McCoy's offer was couched in the following language: "For fifty dollars will give sixty day option at twenty-five thousand dollars." It will at once be observed that this was not an option, but an offer to give one in consideration of $50. Before any obligation rested upon Mr. McCoy to execute and tender the option contract thus referred to, the obligation rested upon Mr. Couch to accept the terms offered, and to pay or tender the consideration money. There can be no contention on the part of either party to this litigation that a formal contract was not contemplated. Mr. Couch, in his telegram of March 3d, says, "Forward sixty day option to-day First |